Monday, December 19, 2011

A WTF Moment From Andrew McCarthy

The usually fairly intelligent Andrew McCarthy has a Gingrich moment in NRO regarding Gingrich of all people. A Gingrich moment of course is stating publicly something really stupid with the sole purpose apparently just to strike back at an opponent. Gingrich's OWS moment when challenged by Mittens to give back the $1.4 million or so he stole from the taxpayers via the obviously unconstitutional Freddie and Fannie.

In his own Gingrich moment, McCarthy, clearly trying to pile on Gingrich for Gingrich's Gingrich moments states unequivocally that Congress may not call any judicial officer or other employee of the Judicial Branch of government to testify before a committee.

For now, though, I just want to address a bad part that is getting most of the attention — as Kate’s post from yesterday indicates. That’s the business about issuing congressional subpoenas to federal judges to coerce them into explaining themselves before lawmakers. As many commentators have suggested, this proposal would violate separation-of-powers principles. The judiciary is a peer of the political branches. It would be no more appropriate for Congress to subpoena a federal judge (or that judge’s clerks) about the reasoning of one of the judge’s rulings than it would be for Congress to subpoena the president (or his top advisors) about a controversial decision that was within the president’s constitutional authority, or for a judge or the Justice Department to issue a subpoena to a member of Congress (or the lawmaker’s staff) to question that member about the deliberations over some legislative act that arguably went beyond Congress’s enumerated powers.

Perhaps McCarthy should consult Eric "Black People" Holder about that subpoena power. He has been subpoenaed or threatened with subpoenas numerous times and testified even more times before a committee of Congress. H. R. Haldeman and John Erlichman, both Presidential advisors, have testified under threat of subpoena or were actually subpoenaed.

Sitting Supreme Court Justices and the Chief Justice have testified numerous times, mostly complaining about work load and pay, but they still have testified.

And how does McCarthy compare a podunk District Court Judge to a Constitutional officer like the President? I suppose the President could refuse, since he commands the U.S. Marshal's Service, the agency who enforces Congressional subpoenas. But a District Court Judge is a creature of Congress. District and Circuit Court of Appeals judges are created and disposed of by Congress. The Constitution created the Presidency and he is co-equal with Congress as a body. And co-equal to the Supreme Court as a body. A District Court Judge is not even the equivalent of a Cabinet Secretary. At best a District Court Judge is the equivalent of the lowest level of political appointee, or other who is confirmed or receives a commission from Congress, perhaps the equivalent of a commissioned officer of the U.S. Public Health Service, or other commissioned services. A sub-cabinet officer would be the equivalent of an Appeals Court Judge. A sitting Justice of the Supreme Court would be the moral and political equivalent of a Cabinet Officer, the Chief Justice somewhere inbetween a Cabinet Officer and the President and Vice-President, if only because he does have some prestige as the chief administrator of the courts.

But claiming any employee of the courts, such as a Clerk of the Court, a personal cerk of a judge, or the numerous administrative employees of a court or the judiciary in general, cannot be called to testify?

What inanity. But then, McCarthy's greatest achievement was that of Assistant United States Attorney. Not all that great. In fact they are notorious for the laziness, declining many more cases than they actually prosecute. Such power to determine their own workload engenders a certain lassitude that combined with a superior attitude results in Gingrichisms. Basically they are conceited jerks with delusions of grandeur, like Gingrich.

But there is nothing in the Constitution that prohibits any person from being subpoenaed by Congress McCarthy's claim not withstanding. Just ask Eric Holder who will be spending the rest of the term of Barak Hussein Obama in front of various committees.

If he is not careful McCarthy will end up as another Erwin Chemerinsky. In the end the purpose of Gingrich's scheme is to force judges to defend their writings under questioning. McCarthy seems to think that just writing a badly reasoned opinion is enough just because it is similar to a law school exercise. He thinks that just giving an opinion is talismic. No need to defend an opinion in a Socratic manner under questioning. Another aspect of the conceit of judges. They don't like questions. Being in a courtroom once or twice shows that judges, especially District Court Judges, don't like hard questions. They run their courtrooms with an iron fist in an iron glove. No one questions or challenges them. Not a good atmosphere for getting at the truth of a question. Questioning before a committee will bring a little humility and force them to defend their opinions with challenges to their assumptions and inconvenient facts that they either ignored, discarded, or discounted. And if an adversary system is good enough for the opposing counsel in a courtroom, then it is good enough for a Judge as well. It might also help with their humility. Nothing like a little public criticism, something that judges dish out every day to witnesses, defendants, litigants, and lawyers every day.

But in the end it all comes down to one thing, is the subpoening of judges to testify as to their official actions and decisions prohibited by the Constitution? There is no such prohibition in the Constitution. That, in the end, is all that one has to know. Of note, if the Chief Justice can testify under oath voluntarily to a Committee of Congress, why cannot he be forced to? It appears that the issue of testifying to a Committee has already been settled in Congress's favor. All that is at issue is the voluntaryness of the testimony.